Opinion
E070936
12-17-2018
In re L.N., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.E., Defendant and Appellant.
Daniel G. Rooney, by appointment of the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J275209) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Daniel G. Rooney, by appointment of the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
J.E. (mother) has given birth to seven children. All seven have, at one time or another, been removed from her custody.
This proceeding concerns her youngest child, L.N. (sometimes child), a girl born in 2013. The mother appeals from an order adjudicating L.N. a dependent. She contends that there was insufficient evidence to support any of the jurisdictional allegations. We disagree. Thus, we will affirm.
I
FACTUAL BACKGROUND
The mother's two oldest children, A.S. and K.S., were removed from her custody due to substance abuse. They ended up in the custody of their father.
In 2004, the mother tested positive for drugs while giving birth to S.E. In 2008, S.E. was "removed from the mother." The record does not reflect any formal dependency proceeding regarding S.E., but it does state that the mother "failed to reunify with" her. The maternal grandmother (grandmother) became S.E.'s legal guardian.
Also in 2008, the mother tested positive for drugs while giving birth to N.A. N.A. and an older child, J.S., were removed from her custody. They were declared dependents, based in part on substance abuse and domestic violence. In 2011, the mother's parental rights to them were terminated.
In 2012, the mother tested positive for drugs while giving birth to J.A. He was removed from the mother's custody and declared a dependent, based in part on substance abuse and the mother's history of domestic violence. In 2014, the mother's parental rights to him were terminated.
In 2013, when L.N. was born, she, too, was removed from the mother's custody and a dependency petition concerning her was filed. She was declared a dependent, based in part on substance abuse and domestic violence. In 2015, however, the case was dismissed.
The mother admitted that she started to use methamphetamine "again" in 2016 or 2017. She reportedly had schizophrenia and heard "voices in her head."
As of 2017, the mother and L.N. were living with the grandmother and S.E., as well as the grandmother's son (uncle). In March 2017, the mother attacked the grandmother with a knife in the presence of the children. She then broke all the windows in the home. She later explained that "she was trying to go after [the uncle]. . . . [S]he does not know why . . . . [S]he flipped out on her mom because she did not want her to see [L.N.] . . . . [H]er mother did not want her to see [L.N.] because she was under the influence at that time." She claimed that L.N. was not present.
CFS asserts that the "[v]oices in Appellant's head triggered her knife assault . . . ." However, there is no evidence of this. While she had auditory hallucinations, there is no evidence that they were command hallucinations.
As a result, the mother was arrested and incarcerated. This left both S.E. and L.N. in the grandmother's care. In June 2017, the mother pleaded guilty to assault with a deadly weapon; she was placed on probation. Her probation conditions included 240 days in jail. (With credit for time served and conduct credit, she was most likely released sometime in August 2017.)
Meanwhile, the grandmother obtained a restraining order against the mother. It prohibited the mother from being in the home and from having unsupervised contact with the children.
Sometime in or before August 2017, the uncle deliberately burned S.E.'s foot with a lit cigarette. The grandmother told him to leave, but he refused. Ten days after the incident was reported, when a social worker visited, he was still in the home. After he was arrested, however, the grandmother said she would not let him back in. The mother later claimed that she was incarcerated at this time.
On Thanksgiving 2017, the uncle, who had been released from jail, visited the grandmother's home, though he did not spend the night.
In or before January 2018, the grandmother's guardianship of S.E. was "rescinded" due to concerns about her ability to protect S.E. from the mother and from the uncle. However, S.E. continued to live with her.
In March 2018, the social worker learned that the grandmother was allowing the mother to drive L.N. to medical and dental appointments. The grandmother told a social worker that the mother "help[ed]" her with the children and visited L.N. in her home — both violations of the restraining order.
In March 2018, San Bernardino County Children and Family services (CFS) detained L.N. and filed a dependency petition concerning her. She was placed in foster care.
At the same time, CFS also detained S.E. and filed a separate dependency petition concerning her.
As of the jurisdictional/dispositional hearing, in June 2018, the mother was still on probation. At the hearing, the juvenile court found that it had jurisdiction based on failure to protect (§ 300, subd. (b)) and abuse of a sibling (id., § 300, subd. (j)). It ordered reunification services for the father but denied them to the mother.
This and all other statutory citations are to the Welfare and Institutions Code.
II
FORFEITURE
Preliminarily, CFS contends that the mother forfeited her contention by: (1) failing to demur to the petition, (2) failing to object (except to one allegation) at the hearing, and (3) specifying a different contention in her notice of appeal.
A. Failure to Demur.
"There is a split of authority on whether a parent waives the right to challenge the sufficiency of the allegations in a dependency petition on appeal after failing to raise the issue by demurrer or other procedural mechanism in the juvenile court." (In re James C. (2002) 104 Cal.App.4th 470, 480, and cases cited.) We need not choose up sides in this split, because even assuming the failure does forfeit a challenge to the sufficiency of the petition, it does not forfeit a challenge to the sufficiency of the evidence to support the jurisdictional findings. (In re Anthony G. (2011) 194 Cal.App.4th 1060, 1064.)
B. Failure to Object.
There is no authority for the proposition that a parent forfeits a claim of insufficiency of the evidence by failing to raise it below. Certainly CFS does not cite any.
To the contrary, "'[s]ufficiency of the evidence has always been viewed as a question necessarily and inherently raised in every contested trial of any issue of fact, and requiring no further steps by the aggrieved party to be preserved for appeal.' [Citations.]" (In re Isabella F. (2014) 226 Cal.App.4th 128, 136.) An affirmative concession that there was sufficient evidence might bar an appellate challenge under the doctrine of invited error. (See In re G.P. (2014) 227 Cal.App.4th 1180, 1193.) Mere failure to assert insufficiency of the evidence below, however, is not a forfeiture. (See generally People v. Butler (2003) 31 Cal.4th 1119, 1126.)
As discussed in part III.A, post, the mother's counsel conceded that there was sufficient evidence to support the j.5 and j.6 allegations.
C. The Notice of Appeal.
1. Additional factual and procedural background.
The mother's notice of appeal was prepared and signed by her counsel.
Item 1 on the notice of appeal form stated: "I appeal from the findings and orders of the court (specify date of order or describe order)." The mother's counsel wrote in, "On 6/7/18 the court ordered no reunification services."
Item 7 stated: "The order appealed from was made under Welfare and Institutions Code section (check all that apply)." The mother's counsel checked "Section 360 (declaration of dependency)." (Bolding omitted.) She also checked "Other orders," and wrote in, "Denial/reunificati[on]."
2. Discussion.
A notice of appeal is supposed to "identif[y] the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.100(a)(2); see also In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) There is no requirement that it specify the issues to be raised on appeal. Quite the contrary, "[t]he notice of appeal . . . is sufficient if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.405(a)(3); see also id., Rule 8.100(a)(2).)
Here, the notice of appeal specified that the mother was appealing from an order entered on June 17, 2018. The juvenile court entered only one order on that date, even though the order did contain multiple provisions. Moreover, the notice of appeal further specified that the mother was challenging both the "declaration of dependency" and the "[d]enial [of] reunificati[on]." This was sufficient to preserve her right to challenge the juvenile court's jurisdictional findings.
In any event, "[i]t is a rule both ancient and sound that '[n]otices of appeal are not strictly construed, and an appeal will not be dismissed because of a misdescription of the judgment or order to which it relates unless it appears that the respondent has been misled by such misdescription.' [Citations.]" (Dang v. Smith (2010) 190 Cal.App.4th 646, 656-657.) CFS has not shown that it was misled in any way.
III
THE SUFFICIENCY OF THE EVIDENCE OF JURISDICTION
The mother contends that the juvenile court erred by sustaining the jurisdictional allegations.
"'In reviewing the jurisdictional findings . . . , we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court.' [Citations.]" (In re R.T. (2017) 3 Cal.5th 622, 633.)
The juvenile court found five jurisdictional allegations true: allegations b.2 (domestic violence), b.3 (father's failure to protect), j.5 (abuse of siblings J.S and N.A.), j.6 (abuse of sibling J.A.), and j.7 (abuse of sibling S.E.). We will discuss the "j" allegations first, followed by the "b" allegations.
A. The J.5 and J.6 Allegations (Abuse of Siblings J.S., N.A., and J.A.).
Allegations j.5 and j.6 read:
"j.5 On January 31, 2008, the children, [J.S.] and [N.A.], were adjudged dependent children of the San Bernardino Juvenile Court pursuant to Welfare and Institutions Code Section 300(b) and (g), due in part to the mother's inadequate supervision and caretaker absence/incapacity. On February 27, 2013, [f]amily [r]eunification services were terminated, thus[] placing the child, [L.N.,] at risk for similar harm.
"j.6 On April 26, 2012, the child, [J.A.], was adjudged [a] dependent child[] of the San Bernardino Juvenile Court pursuant to Welfare and Institutions Code Section 300(b) and (g), due in part to the mother's inadequate supervision and caretaker absence/incapacity. On April 22, 2014, [f]amily [r]eunification services were terminated, thus[] placing the child, [L.N.,] at risk for similar harm."
Under section 300, subdivision (j), the juvenile court has jurisdiction over a child when "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions."
The facts alleged were established by the evidence at the hearing. The mother's counsel's only comment was, "As to the [j.5 and j.6] allegations, we're not going to pretend that my client's history in dependency court with other children is anything but grim. It's a matter of public record that those cases did not end well for her . . . ." Thus, she essentially conceded that they should be found true.
In addition, in this appeal, the mother concedes that "counts j-5 and j-6 are true . . . ." She argues, however, that "[a] failure to reunify" with a sibling is "dispositional" rather than "[j]urisdictional."
The fact that L.N.'s siblings had been found to come under section 300, subdivision (b) established, as a matter of collateral estoppel, that they had been abused or neglected under that subdivision. All that remained to be established was that there was a substantial risk that L.N. herself would be abused or neglected within the meaning of one of the specified subdivisions.
"A parent's past conduct is a good predictor of future behavior. [Citation.]" (In re T.V. (2013) 217 Cal.App.4th 126, 133.) The fact that the mother had failed to reunify with the siblings was relevant because it tended to show that she had not learned her lesson and thus would continue to neglect or abuse L.N. Admittedly, it is also relevant to whether a parent is entitled to reunification services. (§ 361.5, subds. (b)(10) & (b)(11).) However, these are not mutually exclusive.
Accordingly, these allegations were supported by substantial evidence.
B. The J.7 Allegation (Abuse of Sibling S.E.).
Allegation j.7 read:
"j.7 The mother . . . failed to protect the sibling, [S.E.], in that in 08/2017, the child was physically abused on one occasion by the [u]ncle . . . . The acts of abuse included being burned with a cigarette on [S.E.]'s foot. The mother . . . knew or should have known of the abuse, but failed to intervene to protect the child and continued to allow [the uncle] to reside in the home and have unsupervised access to the child. The mother['s] . . . failure to protect places the child [L.N.] at similar substantial risk of serious physical harm and/or further abuse."
As mentioned, section 300, subdivision (j) requires evidence that, among other things, "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i) . . . ."
Section 300, subdivision (b)(1) applies in several circumstances, including when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child
It is arguable that the mother could not anticipate and/or could not protect against the uncle burning S.E. Once he did, however, she did nothing to prevent him from harming S.E. again. Leaving it up to the grandmother to protect S.E. was plainly inadequate. The grandmother told the uncle to leave the home, but when he refused, she did nothing to compel him; he was still there at least 10 days later. After he was arrested, the grandmother claimed that she would not let him back in the home, and yet she did, at least for Thanksgiving.
When a social worker asked the mother about the burning incident, she offered a string of excuses: She was incarcerated and not living in the home when the incident occurred; "she still d[id] not know the whole story"; the uncle "went to jail or something"; the grandmother had kicked the uncle out of the home; and the uncle had said it was an accident. Clearly she felt she had no responsibility to prevent the uncle from harming S.E. in the future.
Her counsel contradicted this by representing that, when the knife attack occurred, the mother "had just learned" about the burning incident. While the record does not reflect the exact date of the burning incident, however, it appears most likely that it occurred after the knife attack, and thus while the mother was incarcerated.
The mother's incarceration, however, ended roughly around August 2017; the uncle was out of jail by November 2017. The restraining order prohibited the mother from being in the home, but it did not prohibit her from communicating with the grandmother and the uncle. In any event, she could have taken steps to modify the restraining order. The grandmother's guardianship of S.E. was rescinded in or before January 2018, partly due to concerns about her ability to protect S.E. against the uncle. At that point, the mother presumably had legal custody of S.E. again. Nevertheless, she left S.E. in the grandmother's home and did nothing to protect her.
Section 300, subdivision (b)(1) does not necessarily require that a parent's failure to protect actually cause serious physical harm; it is enough that it causes a substantial risk of physical harm. Here, even though the mother did not cause the initial burning incident, the juvenile court could reasonably find that she caused a substantial risk of harm thereafter.
Finally, from the mother's failure to protect S.E., it was reasonably inferable that she would also fail to protect L.N.
Thus, this allegation was supported by substantial evidence. Even if it were not however, the error would be harmless, because allegations j.5 and j.6 were well-founded.
C. The B.2 Allegation (Domestic Violence).
Allegation b.2 read:
"b.2 [T]he child, [L.N.], was exposed to incidents of domestic violence between the mother . . . and the . . . grandmother . . . . Such domestic violence included the mother attacking the . . . grandmother with a knife. Such incidents of domestic violence in the home place[] the child at risk of severe physical and emotional harm."
Under section 300, subdivision (b)(1), as relevant here, the juvenile court has jurisdiction over a child when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness."
"Exposure to domestic violence may serve as the basis of a jurisdictional finding under section 300, subdivision (b). . . . '"[D]omestic violence in the same household where children are living . . . is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it." [Citation.] Children can be "put in a position of physical danger from [domestic] violence" because, "for example, they could wander into the room where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg . . . ." [Citation.]' [Citation.]" (In re R.C. (2012) 210 Cal.App.4th 930, 941-942.)
CFS asserts that "it is common knowledge verbal abuse, yelling, and argument is [sic] a component of domestic violence." While verbal abuse may often accompany physical abuse, verbal abuse is not evidence of a substantial risk that a child will suffer serious physical harm.
However, "domestic violence . . . may support the exercise of jurisdiction only if there is evidence that the violence harmed the children or placed them at risk of harm, and 'the violence is ongoing or likely to continue . . . .' [Citation.]" (In re M.W. (2015) 238 Cal.App.4th 1444, 1453.)
Here, the record showed only a single incident of domestic violence between the mother and the grandmother — the knife attack in 2017. In 2008, however, when the juvenile court took jurisdiction of J.S. and N.A., it found that the mother and their father "engage in domestic violence"; there was evidence that they "regularly argue, including . . . pushing, shoving, and throwing things." Likewise, in 2012, when it took jurisdiction of J.A., it found that the mother "has engaged in domestic violence in the past which has not been addressed." And in 2013, when L.N. was first removed from her custody, the juvenile court found that the mother and L.N.'s father had engaged in domestic violence. Thus, there was evidence that she had a long-simmering propensity to domestic violence.
Her criminal history also indicated a propensity to violence in general. It included charges of assault with a deadly weapon in 2005, 2006, and 2011, one of which resulted in a conviction, and charges of fighting or challenging to fight in public in 2012 and 2013.
Finally, the circumstances of the 2017 knife incident also indicated a likelihood of recurrence. The mother was under the influence at the time; given her lengthy history of drug abuse, she was likely to be under the influence again. Also, she "did not know why" she attacked the uncle, suggesting that she was not aware of nor in control of her urges to violence.
It is true that, since the 2017 knife incident, the mother had kept her nose clean. However, she was incarcerated for much of this time (from March 2017 through roughly August 2017), and thereafter she was on probation. She had been participating in a drug rehabilitation program and testing negative, but only since March 2018 — all of three months. Even assuming the juvenile court could have found, based on this evidence, that domestic violence was not likely to recur, it was not required to do so; it could quite reasonably find the opposite.
D. The B-3 Allegation (Father's Failure to Protect).
Allegation b.3 read:
"b.3 The father . . . has a substance abuse problem that affects his ability to effectively parent his child. The father . . . has previously has services terminated as to the child, L.N., [and] has failed to provide care [and] support for the child."
We need not decide whether there was sufficient evidence to support this allegation. As a general rule, "'[w]hen a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.' [Citation.]" (In re I.J. (2013) 56 Cal.4th 766, 773.)
Admittedly, there are several exceptions: "Courts may exercise their 'discretion and reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) "could have other consequences for [the appellant], beyond jurisdiction" [citation].' [Citation.]" (In re D.P. (2015) 237 Cal.App.4th 911, 917.)
Allegation b.3 was based exclusively on the father's conduct. Elsewhere in this opinion, we uphold all of the other jurisdictional allegations, which were based on the mother's conduct. She has not shown that the true finding on this allegation could prejudice her in any way. We therefore decline to review it.
IV
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. RAPHAEL
J.